State v. Blish

• Decision Date: 13 April 2001
• Docket Number: No. 99-373.,99-373.
• Citation: 776 A.2d 380
• Parties: STATE of Vermont v. Robert William BLISH.
• Court: Vermont Supreme Court

776 A.2d 380

STATE of Vermont v. Robert William BLISH.

No. 99-373.

Supreme Court of Vermont.

April 13, 2001.

Motion for Reargument Denied May 15, 2001.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, Montpelier, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

SKOGLUND, J.

Defendant Robert William Blish appeals the Windsor District Court's entry of his guilty plea to the charge of second degree murder. Defendant contends that: (1) the crime described to him in the trial judge's Rule 11(c) colloquy during his plea hearing was voluntary manslaughter, not second degree murder, and therefore the colloquy cannot support his conviction for second degree murder; (2) as a result of this defect, the judge was unable to establish a factual basis for his plea, as required by V.R.Cr.P. 11(f); and (3) as a result of these errors, his plea was involuntary and the court's acceptance of it was therefore in violation of his due process rights. As the plea colloquy was sufficient to satisfy the requirements of Rule 11(c), we affirm.

It is uncontested that on October 12, 1996, defendant shot and killed Plinio Raphael Diaz. The pertinent evidence, for purposes of this appeal, pertaining to the circumstances surrounding this killing is as follows. In the early morning on the date in question, defendant, Diaz, and Debra Secord were traveling together in Diaz's car, en route from Claremont, New Hampshire to Ascutney, Vermont. The car was driven by Second, with defendant riding in the front seat and Diaz alone in the left rear seat. While driving along State Route 131 in Ascutney, defendant and Diaz exchanged insults. Defendant referred to Diaz as "nigger," and Diaz responded by calling defendant "fat boy." When Diaz called defendant "fat boy," defendant pulled out a handgun, turned around to face Diaz, and shot him in the face, killing him. Defendant stated immediately thereafter "[t]here, call me fat boy again."

The information, entered on October 15, 1996, charged defendant with first degree murder. At that time, defendant pled not guilty, and remained in custody. On February 5, 1997, after defendant underwent two separate competency evaluations, a competency hearing was held, and defendant was found competent to stand trial. In the following months, the case proceeded towards trial. On November 3, eleven days before the jury trial was scheduled to begin, defendant entered into a plea agreement. Under the agreement, the State would dismiss separate charges of aggravated assault, unlawful mischief, and attempt to elude, and in exchange defendant would plead guilty to second degree murder, with the State recommending a sentence of fifteen years to life.

At the plea hearing on the same date, with his counsel present, defendant replied affirmatively to the judge's inquiries about whether he had been accorded an opportunity to review the amended charge of second degree murder, and if he was ready to enter a plea at that time. He then pled guilty as agreed, and the judge engaged him in a V.R.Cr.P. Rule 11(c) colloquy concerning the nature of the crime charged, attempting to establish that he understood each of the elements of the crime of second degree murder. After acknowledging his understanding of the first two elements of the crime — that, as the judge characterized these elements, there was an unlawful killing of the victim, and that defendant's conduct had caused this unnatural death — the judge proceeded to discuss the three possible states of mind which can satisfy the mens rea requirement for second degree murder.

The judge first asked defendant if he had intended to kill the victim, to which defendant responded that he both understood the meaning of intent to kill and had not so intended.¹ Defendant was next asked if he had intended to do great bodily harm to the victim. He responded that he had never intended to do bodily harm. The judge then presented the third mens rea possibility, that he "knowingly created a very high risk of death or great bodily harm." The judge further described this third possible mental state as "[i]n other words, your shooting of the weapon created a very high risk that the man would die or he would receive serious bodily injury that would cause protracted use of a bodily member or organ or might result in his death." Defendant agreed that this type of mens rea for second degree murder could be satisfied in this case. The judge concluded that the court was satisfied with the factual basis for the third element of the offense, and continued on with the colloquy.

At the end of the colloquy, the judge stated that "based on the plea of guilty to the amended charge of second degree murder and the discussion I've had with Mr. Blish, I will find that the plea is knowing, voluntarily and intelligently made, with knowledge and understanding of its consequences and that there is a fact basis for the plea." The judge again asked the prosecution and defense counsel whether there was "anything else," and both said no.

Defendant first argues that the colloquy between himself and the judge violated Rule 11(c)(1) because the judge did not adequately explain the nature of the charge to which the plea was offered. See V.R.Cr.P. 11(c) ("The court shall not accept a plea of guilty ... without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following: (1) the nature of the charge to which the plea is offered.").

Before an examination of the substantive argument presented by defendant, we must first address the standard of review applied to a claim of a violation of Rule 11(c) when such claim is, as here, made in a direct appeal to this court. It is well established in Vermont that "an issue under Rule 11(c), alleging violations in taking a plea, absent plain error, demands a factual record and opportunity for the trial court to grant relief before this Court may properly review it." State v. Thompson, 162 Vt. 532, 534, 650 A.2d 139, 140 (1994); see also State v. West, 164 Vt. 192, 203 n. *, 667 A.2d 540, 547 n. * (1995) (Morse, J., concurring and dissenting) (citing Thompson with approval); State v. Ploof, 162 Vt. 560, 562-63, 649 A.2d 774, 776 (1994) (same). In Thompson, the defendant brought a direct appeal to this Court from a plea of nolo contendere to, and subsequent conviction on, charges of sexual assault. In that appeal defendant raised a challenge to the plea based on alleged violations of Rule 11(c), claiming the court failed to both inform him of, and determine whether he understood, the nature of the crimes charged. Thompson, 162 Vt. at 533, 650 A.2d at 139. We held that the proper channel for defendant to bring his claim was through post-conviction relief in superior court, as there was no plain error present which warranted this Court's review. Id. at 534, 650 A.2d at 140. Defendant argues that we should revisit the plain error standard of review we apply to claims of Rule 11(c) violations made directly from the plea hearing to this Court. Because it will have no effect on the outcome of this case, we decline this invitation and hold that there was no error in the Rule 11(c) colloquy in this case.

Defendant does not dispute the fact that he killed Diaz. Rather, he claims that, in a line of cases beginning with State v. Johnson, 158 Vt. 508, 615 A.2d 132 (1992), and State v. Brunell, 159 Vt. 1, 615 A.2d 127 (1992), this Court has sought to reformulate in more modern language the traditional common law definitions of second degree murder, voluntary manslaughter, and involuntary manslaughter. He contends, citing State v. Hatcher, 167 Vt. 338, 344, 706 A.2d 429, 432 (1997),Brunell, 159 Vt. at 7-8,615 A.2d at 130-31; Johnson, 158 Vt. at 515,615 A.2d at 136, and State v. Doucette, 143 Vt. 573, 582, 470 A.2d 676, 682 (1983), that the distinction between these crimes is marked by the degree and character of the actor's recklessness, with second degree murder representing conduct manifesting an extreme indifference to human life, and the risk of death resulting from the actor's conduct must be more than a mere unreasonable risk, or even a high degree of risk. Defendant further contends that the definition provided by the trial judge at the plea hearing, that he "knowingly created a very high risk of death or great bodily harm," constitutes the crime of reckless homicide, or manslaughter, and not second degree murder.

Defendant is correct that we have recently endeavored to modernize, and in so doing clarify, the distinct definitions for the various types of criminal homicide. However, defendant's attempted distillation of our description of the three mens rea possibilities for second degree murder is not as close to the mark. We have recently, subsequent to Johnson, Brunell, Hatcher, and Doucette, specifically identified the mens rea requirement for second degree murder. In State v. Shabazz, 169 Vt. 448, 739 A.2d 666 (1999), we were presented with a challenge to jury instructions describing the crime of voluntary manslaughter. The defendant, Bahiyod Shabazz, stabbed and killed a man during a failed robbery attempt. The testimony at trial varied as to the purpose of the robbery, but provided that the robber was seeking either crack cocaine or money. After the robbery was in progress, a scuffle ensued, and the robber was disarmed and unmasked. The unmasking revealed that the robber was a person known to Shabazz, and the disarming revealed that the gun presented by the robber was in fact a toy.

The testimony at trial varied as to whether Shabazz stabbed the robber before or after discovering the gun was a toy. He was eventually charged with murder for the killing, but argued that his actions were in self-defense. At the conclusion of the...